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In another blog post, I wrote about the sometimes confusing circumstances in which domain name dispute panelists will consider supplemental, or additional, filings from the parties (in addition to a complaint and response) in cases under the Uniform Domain Name Dispute Resolution Policy (UDRP). I quoted the WIPO Overview, which states, in part, that supplemental filings may be appropriate where a party can “show its relevance to the case and why it was unable to provide that information in the complaint or response.”
While the facts and circumstances of every case are obviously unique, one situation in which panelists often accept supplemental filings is when a respondent has raised an allegation of “reverse domain name hijacking.”
Reverse domain name hijacking (RDNH) is defined as “using the [UDRP] in bad faith to attempt to deprive a registered domain-name holder of a domain name.” While the merits and impact of reverse domain name hijacking are better suited for another discussion, a domain name registrant that raises the RDNH issue in a response should be aware that panels typically allow a complainant to respond to such an allegation via an additional filing.
For example, in the following UDRP proceedings, panels have accepted supplemental filings from complainants, to respond to RDNH:
The decisions in these cases to accept supplemental filings where RDNH is raised was also adopted in more recent UDRP decisions, including Bryn Mawr Communications, LLC v. Linkz Internet Services, WIPO Case No. D2016-0286; and Impossible BV v. Joel Runyon, Impossible Ventures, WIPO Case No. D2016-0506. (Disclosure: I served on three-member panels in both of these 2016 decisions.) In the Impossible BV decision, the panel wrote that it would consider the parties’ additional filings—“but only to the extent that they address the issue of Reverse Domain Name Hijacking.”
These decisions are consistent with the prevailing view that a supplemental filing is appropriate where (as I previously wrote) it is “relevan[t] to the case” and where a complainant “was unable to provide that information in the complaint.” In other words, a complainant cannot know that a respondent would assert an allegation of RDNH until the respondent has actually done so. At that point, a complainant is usually able to respond to the allegation via a supplemental filing.
However, some panels have handled the issue differently. For example, in Patricks Universal Export Pty Ltd. v. David Greenblatt, WIPO Case No. D2016-0653, the panel “disallowed” the complainant’s supplemental filing, writing: “The Complainant being the initiator of the proceedings has an obligation to anticipate the possible arguments that the Respondent may put forward as there is no other opportunity to file additional evidence. It is only in exceptional circumstances that a UDRP panel will allow additional evidence to be filed. There is nothing exceptional which justifies the unsolicited filings of the Complainant.” (Perhaps what the panel described as “the Complainant’s empty rhetoric, mudslinging, and unsupported factual allegations” convinced it that a finding of RDNH was compelled regardless of anything further the complainant might add.)
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“In other words, a complainant cannot know that a respondent would assert an allegation of RDNH until the respondent has actually done so.”
When a lawyer signs a pleading in US litigation, Rule 11 applies. It applies whether someone raises the issue or not. It’s not as if submitting a perjured affidavit is only a problem if the perjurer gets found out. It’s a problem when it is signed.
This is like saying, “I had no idea I had to tell the truth in an affidavit until someone said I wasn’t!”
UDRP Complaints are verified complaints, which include an oath. If you look at, say the Bryn Mawr case, the Panel begins…
“To establish Reverse Domain Name Hijacking, a respondent typically must show…”
Whereas the actual rule in question, UDRP Rule 15, says:
“If after considering the submissions the Panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the domain-name holder, the Panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding.”
It’s not up to the Respondent to “prove” anything in that. It is up to the Panel to call foul balls when they see them.
Now, the UDRP cetification requires an affirmative statement that the facts set forth in the filing are, among other things, “complete”. In the Bryn Mawr case, as you know, there was correspondence between the parties stretching back over a period of years - none of which was mentioned in the Complaint, certified as “complete”. Clearly, it is well trod ground that pre-dispute correspondence between the parties is highly material evidence in UDRP disputes.
So where a party has been negotiating over a domain name for several years, then files a UDRP Complaint in which any mention of that conversation (and the admissions therein) are wholly absent from the Complaint, then does it really require the other party to point out “By the way, the certified “complete” Complaint doesn’t mention that they’ve been trying to buy this domain name since before they proceeded to adopt their claimed trademark”?
I believe it is fair to go on the assumption that UDRP panelists tend to be exceptionally well qualified experts, and do not need it explained to them when the grass is green or the sky is blue.
But are you suggesting that, in a default case where the Respondent does not appear, if the Complainant submits a clearly ridiculous and false claim, then there is no problem? A Complaint can be utterly frivolous, misleading, or incomplete, contrary to the UDRP certification, but there is no abuse of process unless the other party says so? That seems to be an abdication of the adjudicator’s role in the orderly administration of the process.
Panels have indeed found RDNH in default cases, and it is worth considering the concurring opinion in Tip Vy Spots LLC Vy v. Super Privacy Service c/o Dynadot
WIPO Case No. D2016-0872:
“A respondent is concerned primarily with winning his case and keeping his domain. A panel bears broader responsibilities. One of these is to preserve the integrity of the entire UDRP process. Another is to call out irresponsible behavior by a complainant. And a third is to identify blameworthy conduct for the benefit of future panels and thus create Policy precedent. When the Rules require a panel to examine the record for abuse, I see no reason for a panel to superimpose a requirement that a respondent expressly request a finding. That condition will frustrate rather than promote full and fair consideration of all issues in a case. Who knows, the proper finding in the proper case might even deter future abuses.”
The odd thing there was that I did not, and in general do not “request” a finding of RDNH. In appropriate cases, I do point out peculiarities about the claim and the Complainant’s candor with respect to prior communications, but the determination is solely up to the panel on its own initiative as stated in the rules.
Stranger still is a recent case in which the panel noted “The Respondent has requested a finding of RDNH…” in which there is no such request to be found in the Respondent’s brief whatsoever.
It may be the panel's responsibility to call fouls when they see them, but if the information isn't widely-publicized (most private negotiations won't be) and neither of the parties brings it up then how is the panel to know about the information? You can't expect the panel to be psychic. If the respondent knows the complainant's omitted relevant information that the panel isn't aware of, it's the respondent's responsibility to point out what was omitted because they're the only ones who know there's anything to point out. The panel shouldn't be oblivious to well-known public information, but they can't be expected to be omniscient.
I can’t seem to find the statistics on the WIPO site on how many RDNH findings there are in a given year.
Would you or one of your colleagues happen to know where WIPO publishes that statistic, or what the trends in RDNH findings have been over the years?
Thanks in advance.